Differences

Travellers into the UK are routinely stopped at the UK border under Schedule 7 of the Terrorism Act 2000. There is no need for specific reasons for suspicion under the general powers of the Schedule.

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Travellers can be asked to provide the passwords for the electronic devices they are carrying, under the Code of Practice that accompanies Schedule 7. In most cases travellers comply with these demands. There is generally no indication about the kind of information that the police are seeking.

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Section 7 of the Act is interpreted as giving officers at port and border control the right to download the contents of phones, laptops, etc with no need for prior suspicion, and to demand passwords for access.[1] (This is separate from the RIPA III requirements.)

These powers were most controversially used in August 2013 when police detained David Miranda, the partner of journalist Glenn Greenwald, confiscated his phone and laptop and forced him to disclose their passwords.[3]

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Security-concious travellers passing through UK ports may be advised to wipe their phones and laptops or to change their passwords to things that they themselves do not know.

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Contents

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1 Relevant sections of Schedule 7

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2 Changes to Schedule 7

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3 Police advice to travellers

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4 The powers in the Act and Schedule 7

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5 Code of Practice

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6 Regulation of Investigatory Powers Act 2000 (RIPA)

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7 Analysis

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8 Incidents

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9 References

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Relevant sections of Schedule 7

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Schedule 7

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5 A person who is questioned under paragraph 2 or 3 must—

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(a) give the examining officer any information in his possession which the officer requests;

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(c) declare whether he has with him documents of a kind specified by the examining officer;

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(d) give the examining officer on request any document which he has with him and which is of a kind specified by the officer.

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8 (1) An examining officer who questions a person under paragraph 2 may, for the purpose of determining whether he falls within section 40(1)(b)—

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(a) search the person;

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(b) search anything which he has with him, or which belongs to him, and which is on a ship or aircraft;

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(c) search anything which he has with him, or which belongs to him, and which the examining officer reasonably believes has been, or is about to be, on a ship or aircraft;

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9 (1) An examining officer may examine goods to which this paragraph applies for the purpose of determining whether they have been used in the commission, preparation or instigation of acts of terrorism.

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(3)In this paragraph “goods” includes—

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(a)property of any description,​ and

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10 (1) An examining officer may authorise a person to carry out on his behalf a search or examination under any of paragraphs 7 to 9.

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11 (1) This paragraph applies to anything which—

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(a) is given to an examining officer in accordance with paragraph 5(d),

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(b) is searched or found on a search under paragraph 8, or

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(c) is examined under paragraph 9.

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(2) An examining officer may detain the thing—

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(a) for the purpose of examination,​ for a period not exceeding seven days beginning with the day on which the detention commences,

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(b) while he believes that it may be needed for use as evidence in criminal proceedings,​ or

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(c) while he believes that it may be needed in connection with a decision by the Secretary of State whether to make a deportation order under the M1Immigration Act 1971.

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Changes to Schedule 7

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The Anti-social Behaviour, Crime and Policing Act 2014 amended Schedule 7. These repealed the power to take blood and semen samples of travellers not suspected of terrorism, but increased the risk to electronic data held by travellers by explicitly allowing police to make copies of anything being searched.[4]

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The power was examined in Chapter 4 of the Joint Committee on Human Rights legislative scrutiny of the bill published in October 2013.[5]

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11 A (1) This paragraph applies where the examining officer is a constable.

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(2) The examining officer may copy anything which—

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(a) is given to the examining officer in accordance with paragraph 5,

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(b) is searched or found on a search under paragraph 8, or

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(c) is examined under paragraph 9.

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(3) The copy may be retained—

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(a) for so long as is necessary for the purpose of determining whether a person falls within section 40(1)(b),

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(b) while the examining officer believes that it may be needed for use as evidence in criminal proceedings,​ or

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(c) while the examining officer believes that it may be needed in connection with a decision by the Secretary of State whether to make a deportation order under the Immigration Act 1971.”

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Police advice to travellers

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The police have produced a leaflet given travellers stating that passwords have to be handed over:

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Can you search me or my luggage or ask me for passwords to electronic devices?

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Yes, you can be searched, together with anything you have with you or belonging to you that is on an aircraft, ship or international train, including any vehicle you might be travelling in. The officer can also search and examine anything belonging to you which may have been, or is about to go, on a ship, aircraft, or international train. This includes electronic devices (mobile phones, laptops etc.) and you can be required to provide the log in information,​ including passwords, to such devices. Under certain circumstances the officer can seize any property they find.[6]

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The powers in the Act and Schedule 7

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Neither the Schedule[7] nor the Act mention passwords for electronic devices. In some cases, travellers have refused and been put on police bail on suspicion of the offence under paragraph 18(1)(a) of the Schedule 7:

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“wilfully fails to comply with a duty imposed under or by virtue of this Schedule,​”

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which carries a penalty (p.18(2)) of:

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“(a)imprisonment for a term not exceeding three months, (b)a fine not exceeding level 4 on the standard scale, or (c)both.”

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The duty in question, refers to p.5(a) of the Schedule:

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“5 A person who is questioned under paragraph 2 or 3 must— (a)give the examining officer any information in his possession which the officer requests;​”

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There are separate powers in the Schedule to search anyone stopped under p.8(1)(c):

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“search anything which he has with him, or which belongs to him, and which the examining officer reasonably believes has been, or is about to be, on a ship or aircraft;​”

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with a corresponding offence under p.18(1)(c):

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“wilfully obstructs, or seeks to frustrate, a search or examination under or by virtue of this Schedule.”

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This has not been invoked however in relation to passwords.

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Code of Practice

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The power to demand passwords is not in the legislation,​ and is only found in the Code of Practice. The first Code of Practice was passed into law in 2002.[8] The current code is from March 2015, and says:[9]

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“39. Information requested by an examining officer under paragraph 5(a) may include electronic data stored on electronic devices, and passwords to those electronic devices. Schedule 7 does not give the examining officer the power to access information that is stored remotely (i.e. not on the device in the officer’s possession, for example on another server), and the examining officer must not access such information or data – to do so would be unlawful. In the event that access to such material is considered necessary, the examining officer should seek authority to use alternative statutory powers, for example the Regulation of Investigatory Powers Act 2000.”

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The Code sets some limitations on legal materials:

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“40. The examining officer may copy any information obtained under paragraph 5; searched or found on a search under paragraph 8; or anything examined under paragraph 9 including electronic data (although examining officers should cease reviewing, and not copy, information which they have reasonable grounds for believing is subject to legal privilege, is excluded material or special procedure material, as defined in sections 10, 11 and 14 of the Police and Criminal Evidence Act 1984).(…)”

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The Code has been presented to Parliament pursuant to paragraph 7(2) of Schedule 14 to the Terrorism Act 2000. This paragraph requires some consultation,​ but it does not require Parliament to vote or discuss the Code, and the SoS can bring the Code into operation by order once a draft has been sent to Parliament.

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According to p. 6(3) of Schedule 14, the Code:

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“(a)shall be admissible in evidence in criminal and civil proceedings,​ and (b)shall be taken into account by a court or tribunal in any case in which it appears to the court or tribunal to be relevant.”

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Regulation of Investigatory Powers Act 2000 (RIPA)

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When police or security services encounter digital material protected by encryption (and the corresponding password or key) a RIPA notice under Part 3 of the Regulation of Investigatory Powers Act 2000[10] would be the expected procedure.

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This power is very broad covering the three main purposes of national security, crime and economic wellbeing, but also being “necessary for the purpose of securing the effective exercise or proper performance by any public authority of any statutory power or statutory duty” (s 49(2)(b)(ii)).

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A RIPA notice, however, “must describe the protected information to which the notice relates” (s 49(4)(b)), which would seem to force the police to give at least an indication of what they are looking for when asking people to unlock their devices so they can be copied.

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The penalty for refusing to comply under RIPA is tougher, two years, or five in cases involving national security (s 53(5A)).

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Analysis

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The power to require passwords has huge privacy implications,​ given the amount of personal information held in mobiles and laptops nowadays. The use of such power on individuals who have not been arrested without specific suspicion is disproportionate. It also appears to bypass RIPA.

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Police forces have rejected Freedom of Information requests about the numbers and outcomes on the grounds that detailed data could help terrorists.[11]

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There are official national aggregate figures:​[12]

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“There were 32,000 examinations carried out under Schedule 7 to the Terrorism Act 2000 in the year ending 31 March 2015, a fall of 28% on the previous year. This could partly be down to a more targeted use of the power and an increased focus on outbound passengers. Over the same period, the number of detentions following a Schedule 7 examination almost tripled, from around 500 to 1,300 detentions. This followed the introduction of the Anti-Social Behaviour, Crime and Policing Act 2014 in August 2014, which made it mandatory to detain a person where an examination lasts for more than an hour.”

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There is a clear racial component to the searches, as around two thirds of those stopped were not white.[13]

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The same data shows that only two people have been proceeded against by the CPS under Schedule 7 since 2010. There is no clear data on how many of those detained ended up prosecuted under other offences. Between January and March 2015, 17 people were arrested and subsequently charged with a terrorism-related offence. Of these two were prosecuted, and both of these convicted. The remaining 15 were awaiting prosecution at the time that data was provided to the Home Office (8 July 2015).

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The 2015 Report of the Independent Reviewer of Terrorism Legislation on the operation of the Terrorism Act 2000 contains overall figures for “downloaded devices”[14]

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“In the year 2015/16, according to information supplied to me by the police: (a) 1,677 people had their mobile devices downloaded under Schedule 7; and (b) A total of some 4,300 devices were downloaded. The figure is partly made up of extrapolated data, because data for the number of devices downloaded was not collected in the period April-June 2015” (Para 7.11)

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There is no specific data on the number of requests for passwords under Schedule 7 powers.

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Rights groups, such as Liberty,​[15] have long criticised Schedule 7 on various grounds but the obtention of passwords has not been raised as far as we can tell.

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ACPO’s advice on Sch 7 from 2009 says that passwords to electronic devices are included in the power.[16] But it is unclear how such a broad power came to be in the statute without proper scrutiny.